Labor: Will border security derail immigration reform?

The Sunday talk shows are abuzz with excitement over the long-awaited debate in the U.S. Senate on immigration reform. The Senate Judiciary Committee approved Senate Bill 744, the Border Security, Economic Opportunity and Immigration Modernization Act (S. 744) and on June 11, the Senate voted 82-15 to finally debate immigration reform in earnest. The Senate seems to be more focused in its approach, while the House appears to be more divided. Based on an ambitious and aggressive timeline, the Senate is vowing to have a bill ready before the July 4 recess.

A decisive vote for an immigration bill in the Senate is likely to send a message to the House. The House can adopt the Senate version or come up with its own bill, possibly even before the August recess. If the House puts forth their own bill, Congress will enter the conferencing phase in September and October to craft a compromise and have a comprehensive immigration bill on the President’s desk for signature before year’s end.

Fixing Our Broken Immigration System

Many problems inherent in the U.S. immigration system are rooted in massive backlogs in applications for available visas and green cards, which S. 744 proposes to fix. The Senate bill addresses green card reform by increasing the numbers of employment-based immigrant visas, also referred to as “green cards,” eliminating per country limits, and streamlining the process for some highly-skilled employees with at least a U.S. master’s degree in a science, technology, engineering or mathematics field (also known as STEM).

Some employees could qualify for permanent resident status based on a merit-based point system similar to the Canadian system. In addition, there will be a Blue Card for up to 337,000 farm workers throughout a five-year period, and there will be a new “W” visa for lower-skilled workers. The number of H-1B visas will be doubled, but it will be more expensive and increasingly difficult for employers to avail themselves of that type of nonimmigrant visa.

Legalization and an Enhanced Employer Verification System

Another important component of the immigration reform bill is the ability of millions of undocumented immigrants to come out of the shadows and apply for Registered Provisional Immigrant (RPI) status as long as they can prove that they were physically present in the U.S. on Dec. 31, 2011. The bill also requires that the undocumented immigrant pass a background check, be fingerprinted, prove gainful employment and pay fines and taxes. After a certain number of years in RPI status, people could petition for lawful permanent resident status. Along with that comes a phasing in over a number of years of a mandatory national employer verification system, probably E-Verify or a similar system.

The Border Security “Poison Pill”

Could the issue of border security and how it is measured poison the effort? S. 744 as introduced in the Senate was initially 844 pages long, not to mention the numerous amendments that were considered by the Judiciary Committee. It is anticipated that hundreds of amendments will be filed in the next several weeks and debated right up until a vote is taken on the bill.

Senators Chuck Grassley (R-IA) and John Cornyn (R-TX) already filed amendments to put in place legalization triggers. Senator Grassley’s amendment would prohibit the granting of RPI or “registered provisional immigrant” status until the Secretary of the Department of Homeland Security (DHS) has maintained effective control of the borders for six months. Senator Cornyn calls for 100 percent monitoring capability on the entire Southern border, a 90 percent apprehension rate on the Southern border, and a biometric exit system for all air and sea ports, before green cards will be given to individuals in the legalization plan.

What is Next?

It is clear that all Americans recognize that immigration has to be addressed now and the vast majority of Americans is ready to support immigration reform. What remains to be seen is whether our political system can get this done without being derailed by partisan roadblocks. Follow the debate!

Contributing Author

Anton Mertens

Anton Mertens is a partner and immigration lawyer with Burr & Forman LLP (Atlanta). He concentrates on assisting with business immigration matters for investors, managers,...